Consolidated Alfalfa Milling Co. v. Winsor

The only error assigned in the petition in error in this cause is:

"That there is error in said record and proceeding in this, to wit: That the court erred in overruling the motion of the plaintiffs in error to dismiss this suit."

The defendant in error moved to dismiss the proceeding in error upon the ground that under our statute governing appellate procedure an order overruling a motion to dismiss a cause of action which leaves the case standing for further proceedings is not an appealable order. The motion to dismiss must be sustained. The following cases are authority to the effect that an order overruling a motion to quash a summons, or service, or to dismiss or strike a cause, is not an appealable order: Simpson v. Stein, 43 Kan. 35, 22 P. 1020; Simpson v.Kirschbaum Co., 43 Kan. 36, 22 P. 1018; Brown v. Kimble,5 Kan. 80; Dolbee v. Hoover, 8 Kan. 124; Edenfield v. Barnhart,5 Kan. 225; Simpson v. Rothchild et al., 43 Kan. 33, 22 P. 1019; Kansas Rolling Mill Co. v. Bovard, 34 Kan. 21, 7 P. 622. As we borrowed our statute governing appeals from the state of Kansas subsequent to the rendition of the foregoing cases by its highest court, they are decisive upon the question under consideration. The appeal is dismissed.

All the Justices concur.